Why Families Should Not Go Through Social Media or Emails Before Speaking With a Probate Attorney

After someone passes away, family members naturally want answers and may not know what to expect. They may want to check the person’s email, review social media accounts, look through private messages, or log into accounts to see if there are bills, subscriptions, financial records, or personal information that needs attention.  That instinct is understandable. But it can create serious problems.
Before a family member logs into a deceased person’s email, social media, cloud storage, phone, or online accounts, they should speak with a probate attorney. The safest approach is to preserve access and information — not to use the accounts.

Having the Password Does Not Always Mean You Have Permission

One of the biggest misunderstandings is that if a family member has the password, they have authority to use the account.  That is not necessarily true.  A password may allow physical access, but it does not automatically create legal authority. The account may be governed by the platform’s terms of service, federal privacy laws, Nevada’s digital asset laws, the decedent’s estate planning documents, and any online directions the decedent gave through the platform.
Nevada has adopted laws addressing fiduciary access to digital assets. Those laws recognize that access to digital accounts may depend on whether the user gave directions through an online tool, a will, a trust, a power of attorney, or another legal record. Nevada law also recognizes that access may be affected by federal law and the platform’s terms-of-service agreement.  In other words, just because someone knows the password does not mean they are the person legally authorized to review, download, delete, or manage the account.

Private Emails and Messages Are Different From Ordinary Estate Papers.

 

There is a big difference between finding a bank statement on the kitchen counter and reading someone’s private emails or direct messages.  Emails, texts, and private social media messages may include confidential communications, medical information, financial information, attorney-client communications, business records, private family communications, or information involving third parties who are still living.
That is why digital access laws often distinguish between the content of electronic communications and other digital information, such as a catalogue or list of communications. Nevada law has separate provisions addressing disclosure of the contents of electronic communications of a deceased user and disclosure of other digital assets.  The family may eventually need access to certain information. But the proper person should request it in the proper way.

Logging In Can Create Privacy and Legal Problems

A family member may think, “I’m only checking the email to see if there are bills.” But once someone logs in, several problems can arise.  They may accidentally access private information they were not entitled to see. They may view communications involving other family members, business partners, clients, caregivers, or advisors. They may see information that creates conflict within the family. They may also expose themselves to accusations that they invaded privacy, deleted evidence, interfered with property, or acted without authority.
Even if the person had good intentions, it can look bad later if there is a dispute.  For example, if a beneficiary later claims that emails were deleted, messages were altered, or financial information disappeared, the person who accessed the account may have to explain exactly what they did and why.

It Can Damage Evidence

 Emails, texts, social media posts, direct messages, photos, cloud files, and account history may become important later.  They may help identify assets, debts, beneficiaries, business matters, financial transactions, caregiver issues, promises made to family members, or signs of undue influence or exploitation.  But, if a family member logs in, deletes messages, changes settings, downloads files, closes accounts, or even accidentally marks emails as read, it may affect the usefulness of that information. It may also make it harder to prove what was there before the account was accessed.  In a contested estate or trust matter, digital information can become evidence. Families should be careful not to disturb it.

It May Violate the Platform’s Rules

Social media and email accounts are usually controlled by terms of service. The platform may have specific procedures for memorializing an account, closing an account, requesting content, or giving access to a personal representative or trustee. If a family member simply logs in as if they are the deceased person, that may violate the platform’s rules. It may also interfere with the formal process later if the personal representative, trustee, or attorney needs to request records directly from the platform.
Many platforms have tools for legacy contacts, memorialized accounts, or post-death account access. Those tools should be handled carefully and usually after legal authority is confirmed.

It Can Cause Family Conflict

Digital accounts often contain sensitive information.  One family member may believe they are helping by reviewing emails or messages. Another family member may view that as snooping, hiding information, or trying to control the estate. This can quickly create mistrust.  The risk is even greater when there are strained relationships, blended families, second marriages, stepchildren, caregiver concerns, business interests, or disputes over who should be in charge.  Waiting for legal guidance can prevent one person from being accused of taking matters into their own hands.

It Can Create Problems for the Person Who Will Be Appointed

The person who is eventually appointed as personal representative or who serves as trustee may have legal duties to preserve estate or trust property, protect records, and act in the best interests of the beneficiaries.  If another family member has already accessed, altered, deleted, or closed digital accounts, it can make the fiduciary’s job harder. The fiduciary may have to reconstruct what happened, explain missing information, or deal with accusations from beneficiaries. It is much better to preserve the devices, passwords, and account information so the attorney can advise who should act and how.

What Families Should Do Instead

The family should not ignore digital accounts. They should simply handle them carefully.  Before meeting with the probate attorney, the family should:
1. Make a list of known email, social media, cloud storage, financial, and subscription accounts;
2. Preserve the decedent’s phone, computer, tablet, and external drives;
3. Locate any written password list or password manager information;
4. Avoid resetting devices;
5. Avoid changing passwords;
6. Avoid deleting emails, texts, photos, files, or posts;
7. Avoid closing or memorializing social media accounts until authority is confirmed;
8. Take screenshots of publicly visible information if there is concern it may disappear;
9. Identify accounts connected to automatic payments; and
10. Tell the probate attorney if anyone has already accessed an account.
The goal is not to pretend the digital world does not exist. The goal is to avoid creating legal, privacy, or evidentiary problems before the family knows who has authority to act.
Drizin Law is providing this information for educational purposes only. It should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. This information is based on general principles of Nevada law at the time it was created and you should be aware laws frequently change. Moreover, the laws affecting you may differ depending on the circumstances. You should consult with a qualified attorney in your own state or jurisdiction concerning your particular situation. Review of this information does not create an attorney-client relationship.